EXHIBIT 10.1


 





EXECUTION
VERSION


 





WAIVER


 


THIS
WAIVER, dated as of December 31, 2016 (this “Agreement”), is entered into among Ruby Tuesday, Inc., a Georgia
corporation (the “Borrower”), the Guarantors, the Lenders party hereto and Bank of America, N.A., as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”). All capitalized terms used herein and
not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS,
the Borrower, the Guarantors, the Lenders and the Administrative Agent entered into that certain Revolving Credit Agreement dated
as of December 3, 2013 (as amended by that certain First Amendment to Revolving Credit Agreement and Waiver dated as of January
10, 2014, that certain Second Amendment to Revolving Credit Agreement and Waiver dated as of February 7, 2014, that certain Third
Amendment to Revolving Credit Agreement dated as of August 5, 2014, that certain Fourth Amendment to Revolving Credit Agreement
dated as of June 29, 2015, that certain Fifth Amendment to Revolving Credit Agreement and Consent dated as of October 23, 2015,
that certain Sixth Amendment to Revolving Credit Agreement dated as of August 10, 2016, and as further amended or modified from
time to time, the “Credit Agreement”);


 


WHEREAS,
the Borrower has informed the Administrative Agent that an Event of Default has occurred and is continuing under the Credit Agreement
as a result of the Borrower’s failure to maintain a Consolidated Fixed Charge Coverage Ratio of not less than 1.65:1.00
as of the fiscal quarter ending November 29, 2016 pursuant to Section 7.1 of the Credit Agreement (the “Acknowledged
Event of Default”); and


 


WHEREAS,
the Borrower has requested that the Lenders waive the Acknowledged Event of Default, subject to the terms and conditions specified
in this Agreement.


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


 


1.       Incorporation
of Recitals. The recitals to this Agreement are incorporated fully and made a part of this Agreement.


 


2.       Waiver.
Subject to the other terms and conditions of this Agreement, the Required Lenders hereby waive the Acknowledged Event of Default
until January 31, 2017 (the “Waiver Termination Date”); provided, that, from the date hereof
through and including the Waiver Termination Date, (a) the aggregate principal amount of Revolving Loans and Letters of Credit
outstanding at any time under the Credit Agreement shall not exceed $16,100,000.00 (the “Waiver Period Revolving Cap”),
it being understood and agreed that (i) in the absence of a Waiver Termination Event (as defined below), the Borrower shall be
permitted to borrow, repay and re-borrow Revolving Loans and request, renew, amend and extend Letters of Credit under the Credit
Agreement up to the Waiver Period Revolving Cap, and (ii) the Waiver Period Revolving Cap shall not constitute a reduction of
the Revolving Commitments; (b) notwithstanding anything to the contrary set forth in the Loan Documents, the Loan Parties shall
not make (i) any Acquisitions permitted under Section 8.3(h) of the Credit Agreement, or (ii) any Investments permitted under
Section 8.3(j) of the Credit Agreement, and (c) notwithstanding anything to the contrary set forth in the Loan Documents, the
Loan Parties shall not make any Restricted Payments permitted under Section 8.4(c) of the Credit Agreement or Section 8.4(d) of
the Credit Agreement. From the date hereof through and including the Waiver Termination Date, the Administrative Agent and the
Lenders


 




     


    


    

shall, subject
to the terms and conditions set forth herein, forbear exercising their rights and remedies arising exclusively as a result of
the Acknowledged Event of Default; provided, that, the Administrative Agent and the Lenders shall be free to exercise
any or all of their rights and remedies arising on account of the Acknowledged Event of Default upon the earliest to occur of
(A) the occurrence of any Default or Event of Default under the Credit Agreement or any other Loan Document other than the Acknowledged
Event of Default, (B) a breach of any obligation or covenant of any Loan Party under this Agreement, (C) the exercise of any default
remedies by the holders of any former franchise partner Indebtedness with respect to mortgage loan obligations existing on the
date hereof and (D) the Waiver Termination Date (the occurrence of any event described in the foregoing clauses (A), (B),
(C) or (D) being referred to herein as a “Waiver Termination Event”). The waiver set forth herein
shall be effective only in this specific instance and shall not obligate the Lenders or the Administrative Agent to waive any
other Default or Event of Default, now existing or hereafter arising. This temporary waiver is limited solely to the matter described
in the first sentence of this Section 2 as of the date hereof, and nothing contained in this Agreement shall (1) modify
the Loan Parties’ obligations to comply fully with all other duties, terms, conditions or covenants contained in the Credit
Agreement and the other Loan Documents or (2) be deemed to constitute a waiver of any other rights or remedies the Administrative
Agent or any Lender may have under the Credit Agreement or any other Loan Documents or under applicable law. This is a one-time
waiver, and the Administrative Agent and the Lenders shall have no obligation to amend, modify or waive any provision of the Credit
Agreement or any other Loan Document in the future. The provisions and agreements set forth in this Agreement shall not establish
a custom or course of dealing or conduct between the Administrative Agent, the Issuing Bank, any Lender, the Borrower or any other
Loan Party.


 


3.       Reaffirmation.
Each Loan Party hereby acknowledges and agrees that as of December 31, 2016, (a) the outstanding principal amount of the Revolving
Loans is $0.00; and (b) the aggregate amount of Letters of Credit issued under the Credit Agreement is $11,090,514.00, which amounts
constitute valid and subsisting obligations of each Loan Party to the Administrative Agent and the Lenders that are not subject
to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind. Each Loan Party hereby (i) acknowledges the
existence of the Acknowledged Event of Default, (ii) acknowledges and reaffirms that it is bound by all of the terms of the Credit
Agreement and the other Loan Documents to which it is a party and (iii) acknowledges and reaffirms that it is responsible for
the observance and full performance of all Obligations, including without limitation, the repayment of the Loans and reimbursement
of any drawings on a Letter of Credit. Without limiting the generality of the preceding sentence, each of the Guarantors restates
and reaffirms that it guarantees the prompt payment when due of all Obligations, in accordance with, and pursuant to the terms
of the Credit Agreement. Furthermore, the Loan Parties acknowledge and confirm (A) that the Administrative Agent and the Lenders
have performed fully all of their respective obligations under the Credit Agreement and the other Loan Documents and (B) by entering
into this Agreement, except as expressly set forth herein, the Lenders do not waive or release any term or condition of the Credit
Agreement or any of the other Loan Documents or any of their rights or remedies under such Loan Documents or applicable law or
any of the obligations of the Loan Parties thereunder.


 


4.       Release.
In consideration of the Administrative Agent’s and the Lenders’ willingness to enter into this Agreement, each Loan
Party hereby releases and forever discharges the Administrative Agent, the Issuing Bank, the Lenders and each of their respective
predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives and affiliates
(hereinafter, all of the above collectively referred to as the “Lender Group”) from any and all claims, counterclaims,
demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, in each case to the extent
arising in connection with this Agreement or any of the other Loan Documents or any of the negotiations, activities, events or
circumstances arising out of or related to this Agreement or the other Loan Documents through the date of this Agreement, whether
arising at law or in equity, whether


 




    2 


    


    

known or
unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen,
and whether or not heretofore asserted, which each Loan Party may have or claim to have against any entity within the Lender Group.


 


5.       Conditions
Precedent. This Agreement shall be effective upon the receipt by the Administrative Agent of:


 


(a)       counterparts
of this Agreement, duly executed by the Borrower, the Guarantors, the Administrative Agent and the Required Lenders;


 


(b)       a
certificate of a Responsible Officer of the Borrower attaching and certifying as true and complete the agreements waiving all
financial covenant events of default under any former franchise partner Indebtedness with respect to mortgage loan obligations
existing on the date hereof, in each case executed by the lender or lenders providing such Indebtedness and in form and substance
reasonably satisfactory to the Administrative Agent; and


 


(c)       all
fees and other amounts due and payable on or prior to the date hereof, including reimbursement or payment of all out-of-pocket
expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrower hereunder or under any other Loan Document.


 


6.       Disclosure.
The Borrower covenants and agrees that as soon as possible following the satisfaction (or waiver) of the conditions precedent
set forth in Section 5, but in any event within one (1) Business Day following the date of this Agreement (or such longer
period of time as may be agreed by the Administrative Agent in its sole discretion), the Borrower shall file with the SEC a Current
Report on Form 8-K incorporating a complete copy of this Agreement.


 


7.       Miscellaneous.


 


(a)       The
Credit Agreement, and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and
confirmed and, except as expressly modified by this Agreement, shall remain in full force and effect according to their terms.
This Agreement shall constitute a Loan Document.


 


(b)       Each
Loan Party hereby represents and warrants as follows: (i) such Loan Party has taken all necessary action to authorize the execution,
delivery and performance of this Agreement; (ii) this Agreement has been duly executed and delivered by such Loan Party and constitutes
the legal, valid and binding obligations of such Loan Party, enforceable in accordance with its terms, except as such enforceability
may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and (B) general principles of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity); and (iii) no consent, approval, authorization or order of, or filing, registration or qualification
with, any court or governmental authority or third party is required in connection with the execution, delivery or performance
by such Loan Party of this Agreement.


 


(c)       Each
Loan Party represents and warrants to the Lenders that (i) the representations and warranties set forth in Article V of the Credit
Agreement and in each other Loan Document are true and correct in all material respects (after giving effect to this Agreement)
as of the date hereof with the same effect as if made on and as of the date hereof, except to the


 




    3 


    


    

extent
such representations and warranties expressly relate to an earlier date and (ii) no unwaived event has occurred and is continuing
which constitutes a Default or an Event of Default.


 


(d)       This
Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but
all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopy shall
be effective as an original and shall constitute a representation that an executed original shall be delivered.


 


(e)       THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.


 


[remainder
of page intentionally left blank]


 




    4 


    


    

Each
of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above
written.


 


	BORROWER:	RUBY TUESDAY, INC.	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/  Rhonda Parish 	 
	 	Name:	Rhonda Parish	 
	 	Title:	Chief Legal Officer and Secretary 	 
	 	 	 	 
	GUARANTORS:	RTBD, INC.	 
	 	RT FINANCE, INC.	 
	 	RUBY TUESDAY GC CARDS, INC.	 
	 	RT TAMPA FRANCHISE, L.P.	 
	 	RT ORLANDO FRANCHISE, L.P.	 
	 	RT SOUTH FLORIDA FRANCHISE, L.P.	 
	 	RT NEW YORK FRANCHISE, LLC	 
	 	RT SOUTHWEST FRANCHISE, LLC	 
	 	RT MICHIANA FRANCHISE, LLC	 
	 	RT FRANCHISE ACQUISITION, LLC	 
	 	RT KENTUCKY RESTAURANT HOLDINGS, LLC	 
	 	RT FLORIDA EQUITY, LLC	 
	 	RTGC, LLC	 
	 	RT DETROIT FRANCHISE, LLC	 
	 	RT MICHIGAN FRANCHISE, LLC	 
	 	RT WEST PALM BEACH FRANCHISE, L.P.	 
	 	RT NEW ENGLAND FRANCHISE, LLC	 
	 	RT LONG ISLAND FRANCHISE, LLC	 
	 	RUBY TUESDAY, LLC	 
	 	RT Las Vegas Franchise, LLC	 
	 	RT Minneapolis Franchise, LLC	 
	 	RT Indianapolis Franchise, LLC	 
	 	RT Denver Franchise, L.P.	 
	 	RT Omaha Franchise, LLC	 
	 	RT KCMO Franchise, LLC	 
	 	RT Portland Franchise, LLC	 
	 	RT St. Louis Franchise, LLC	 
	 	RT Western Missouri Franchise, LLC	 
	 	RT AIRPORT, INC.	 
	 	RT LOUISVILLE FRANCHISE, LLC	 
	 	RT MCGHEE-TYSON, LLC	 
	 	RT ONE PERCENT HOLDINGS, INC.	 
	 	RT ONE PERCENT HOLDINGS, LLC	 
	 	RT MINNEAPOLIS HOLDINGS, LLC	 
	 	RT OMAHA HOLDINGS, LLC	 
	 	RT DENVER, INC.	 
	 	RT LOUISVILLE, INC.	 
	 	RT ORLANDO, INC.	 
	 	RT SOUTH FLORIDA, INC.	 
	 	RT TAMPA, INC.	 
	 	RT WEST PALM BEACH, INC.	 




    WAIVER
RUBY TUESDAY, INC.


    


    

	 	RT
    NEW HAMPSHIRE RESTAURANT HOLDINGS, LLC	 
	 	RT RESTAURANT
    SERVICES, LLC	 
	 	RTTA,
    LP	 
	 	RT DISTRIBUTING,
    LLC	 
	 	RT O’TOOLE,
    LLC	 
	 	RT SMITH,
    LLC	 
	 	RT MILLINGTON,
    LLC	 
	 	4721 RT
    OF PENNSYLVANIA, INC.	 
	 	RTTT,
    LLC	 
	 	RTT TEXAS,
    INC.	 
	 	RT JONESBORO
    CLUB	 
	 	RUBY TUESDAY
    OF RUSSELLVILLE, INC.	 
	 	RUBY TUESDAY
    OF CONWAY, INC.	 
	 	RT KCMO
    KANSAS, INC.	 
	 	RUBY TUESDAY
    OF BRYANT, INC.	 
	 	 	 
	 	 	 
	 	By:	/s/ Rhonda Parish 	 
	 	Name:	Rhonda Parish	 
	 	Title:	Vice President and
    Secretary 	 



 



    WAIVER
RUBY TUESDAY, INC.


    


    








 






	ADMINISTRATIVE AGENT:	BANK OF AMERICA, N.A.,

                    as Administrative Agent
	 
	 	 	 
	 	 	 
	 	By:	/s/ Kelly Weaver	 
	 	Name:	Kelly Weaver	 
	 	Title:	Vice President	 







 





 




    WAIVER
RUBY TUESDAY, INC.


    


    

	LENDERS:	BANK OF AMERICA, N.A.,

                    as a Lender and an Issuing
Bank
	 
	 	 	 
	 	 	 
	 	By:	/s/ Anthony Luppino	 
	 	Name:	Anthony Luppino	 
	 	Title:	Vice President	 










 




    WAIVER
RUBY TUESDAY, INC.


    


    

		WELLS
FARGO BANK, NATIONAL ASSOCIATION,


as a Lender

	 
	 	 	 
	 	 	 
	 	By:	/s/ Maureen S. Malphus	 
	 	Name:	Maureen S. Malphus	 
	 	Title:	Vice President	 




 








 




    WAIVER
RUBY TUESDAY, INC.


    


    

		
REGIONS BANK,





as a Lender


	 
	 	 	 
	 	 	 
	 	By:	/s/ Jay R Goldstein	 
	 	Name:	Jay R Goldstein	 
	 	Title:	Managing Director	 



 









    WAIVER
RUBY TUESDAY, INC.